High Court · 2024
Legal Reasoning
907-ABA-1553-2024.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADANTICIPATORY BAIL APPLICATION NO. 1553 OF 2024Mayur Balasaheb SomvanshiVersusThe State of Maharashtra & Anr.-------------------------Mr. A. D. Ostwal for the Applicant.Mr. A. M. Phule, APP for the State.-------------------------CORAM :ADVAIT M. SETHNA, J. DATE :1 JULY 2025P. C.:1.The Applicant has filed the present application, under Section482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) as heapprehends his arrest.2.These proceedings relate to CR No.0314 of 2024. The FIR hasbeen lodged on 9 March 2024 at 16.08 hours by the Tophkhana PoliceStation, Dist. Ahmednagar. The Sections invoked are 326, 307 (subsequentlyadded), 143, 144, 147, 148, 149, 427 (subsequently added), 504, 506 of theIndian Penal Code, 1860 (“IPC”) and Section 4/24 of the Arms Act. Thereare 7 accused persons, the present Applicant being disclosed as accusedNo.1.Case in the FIR:-3.The complainant Ajay Karpe, aged 24 years lodged the reportstating that his friend Vaibhav Sampat Baraskar was having a tea center. On8 March 2024 at about 3.00 p.m., the present Applicant and 5 to 6 personsincluding the co-accused came inside the said premises and the otherpersons waited outside. Accused Nos.2, 3 and 4 i.e. Omkar Thombre, AbhiTirandas and Tahir Shaikh came inside the premises and the other personsShubham Page 1 of 9 907-ABA-1553-2024.docwaited outside. The accused Nos.2 and 3 started saying how “dare theytouch their bhai”. They threatening that the complainant should not be keptalive along with his friend. The complainant reported that the presentApplicant gave a blow of iron koyata on the head of the complainant. Thecomplainant dodged the blow which fell on his right shoulder and theApplicant then gave a blow to the right knee of the complainant, because ofwhich the latter fail down. On that, accused Nos.3 and 4 followed thecomplainant including accused Nos.5, 6 and 7, who stated that thecomplainant should not be left alive and should be killed. However, as andwhen people gathered outside the canteen, the Applicant and hiscompanions ran away saying that they would not leave the complainantalive. At that time, the father of the complainant’s friend Sampat Baraskarbrought the complainant to the civil hospital where he was subsequentlyadministered treatment. In such circumstances, the report of thecomplainant is filed and the FIR is lodged. Submissions:-4.Mr. Ostwal, learned Advocate for the Applicant by referring toan order of this Court dated 19 September 2024, by which protection wasgranted to the Applicant, would contend that all the conditions in the saidorder have been duly and fully complied with by the Applicant. He hasthereby co-operated with the investigation as directed in the said orderdated 19 September 2024. He would submit that the nature of injuryinflicted on the Informant in the given facts and circumstances is simpleinjury as clearly revealed from the injury certificate placed on record. Thealleged weapon used during the said assault i.e. iron koyata has also beenseized by the police station when the Applicant was directed to attend thesaid police station. This is a clear case of counterblast inasmuch as an earlierFIR was lodged against the said Informant by the Applicant on 30 June 2023by the Tophkhana Police Station, District Ahmednagar for a similar incidentShubham Page 2 of 9 907-ABA-1553-2024.docof assault. The provisions invoked are also similar to those under the presentFIR. In the said incident, this Applicant had also suffered injuries which ledto him to be admitted to the Intensive Care Unit (ICU) of the hospital. Hewould submit that the co-accused persons are released on bail by differentorders dated 14 May 2024 and 27 June 2024, passed by the AdditionalSessions Judge, Ahmednagar, which are annexed to the said ABA. TheApplicant has been truthful and forthcoming in disclosing the criminalantecedents against him and also placing the same on record. However, hewould submit that as the Applicant has able to establish prima facie case inthe given facts and circumstances such criminal antecedents ought not to bethe sole factor for rejecting the ABA. At this juncture he would strenuouslyurge that the Informant is also a person with criminal record allegedlycommitted offences under the Sections similar to that in the present FIRlodged against the Applicant. This ought to be a relevant and materialconsideration. The Applicant has fully co-operated with the investigationand undertakes to do so in letter and spirit. Mr. Ostwal would also submitthat there is a delay of about 24 hours in lodging the FIR in respect of whichthere is no explanation forthcoming from the prosecution. For such reasons,custodial interrogation in the given facts and circumstances is not warrantedand the ABA of the Applicant ought to be allowed.5.On the other hand, Mr. Phule would vehemently oppose grantof any relief in the ABA. He would submit that here is a person, who is ahistory-sheeter, a person of serious criminal antecedents. The offencesallegedly committed by him in the past are similar to the ones in the presentFIR. There is a complete possibility that if granted such relief, he would onceagain commit similar offences, which is gathered from his habitual conduct.Such persons like the Applicant, according to Mr. Phule, ought to be taught alesson as they cannot fought the law and ought to be fearful of legalconsequences. Accepting that the injury certificate reveals simple injury, heShubham Page 3 of 9 907-ABA-1553-2024.docwould urge that looking at the nature of accusations and the weapon usedi.e. iron koyata to inflict injuries by the Applicant of the Informant suchassault is of grave nature. It ought not to be dismissed only as simple injury.Though he would not dispute that the alleged weapon is seized, consideringthe background and conduct of this Applicant, according to Mr. Phule,custodial interrogation of the Applicant is warranted in the given facts andcircumstances. According to Mr. Phule, even if the Informant has criminalantecedents that itself cannot permit the Applicant to violate the law and actin a manner contrary to law. According to him, there is no delay in lodgingthe FIR as alleged by Mr. Ostwal, learned Advocate for the Applicant. For allsuch reasons, Mr. Phule would submit that as custodial interrogation iswarranted, the ABA ought not to be rejected.Findings:-6.Firstly, it is to be noted that the present Applicant was grantedprotection by this Court vide the initial order dated 19 September 2024,which was extended from time to time, which the learned APP would notdispute. It further appears to be not disputed that pursuant to the order of19 September 2024 of this Court and the conditions imposed therein, theApplicant has attended the police station and co-operated with the ongoinginvestigation. The fact of simple injury is also not disputed by theprosecution relying on its injury certificate which is a part of the case diary.Also, the alleged weapon used in such assault has been seized by the saidpolice station when the Applicant was directed to attend the police station.Such fact is also not disputed. The record produced before the Court as alsofrom the ABA would indicate that there is a prior FIR dated 30 June 2023,lodged with the same police station in CR No.0942 of 2023 for an allegedincident of assault dated 29 June 2023 reported on 30 June 2023. Pertinentit is to note that the said FIR is not only prior in point in time to the said FIRin the present proceedings, but that it was under a complaint made by theShubham Page 4 of 9 907-ABA-1553-2024.docpresent Applicant being the informant there inter alia against thecomplainant i.e. Ajay Karpe in the present proceedings. Also, one VaibhavBaraskar, who happens to own the tea center in the present proceedings i.e.the premises where the alleged assault took place is the co-accused in theearlier FIR dated 30 June 2023, lodged at the instance of the presentApplicant. The Sections invoked in the earlier FIR are also similar to that inthe present proceedings. In such circumstances, the aspect of enmity, rivalrybetween two groups, one where the Applicant is the accused person and theother, where the Applicant was the informant and the present complainantbeing one of the accused cannot be completely discarded at such prima faciestage. In such facts, the submission of Mr. Ostwal, learned Advocate for theApplicant that the given complaint and the said FIR could be a counterblastto the earlier FIR of 30 June 2023 cannot be summarily rejected. There isalso some delay in lodging the FIR for which there is no explanationforthcoming at this stage. 7.Adverting to Mr. Phule’s submission that apart from the fact thatthe injuries are simple as revealed from the medical/injury certificate in thegiven facts, one ought not to overlook the nature of accusations and that thepresent Applicant assaulted the complainant with an iron koyata, which hasled to grievous hurt to the complainant. However, at the same time, onecannot lose sight of the fact that the alleged weapon/iron koyata used by thepresent Applicant as noted in the FIR, has been recovered, which was theprimary basis of rejecting the ABA of this Applicant by the Sessions (trial)Court. Also the medical certificate of the prosecution would reveal oneinjury from the sharp edged weapon on the upper leg, one small contusedlacerated wound on the shoulder, pain with small wound on the lower legand apparently no fracture as per the X-Ray report, for which the injurieswere attributed to be simple in nature. Also that there is no reportedgrievous hurt/injury affecting the vital parts of the informant’s body, whichShubham Page 5 of 9
Legal Reasoning
907-ABA-1553-2024.docwould be of relevance at this prima facie stage.8.The record, including the ABA would indicate that the co-accused persons i.e. accused Nos.2, 3 and 6 have been enlarged on regularbail by separate orders passed by the Additional Sessions Judge,Ahmednagar in Regular Bail Applications Nos.804 of 2024 for co-accusedNo.2, No.555 of 2024 for accused No.3 and No.939 of 2024 for co-accusedNo.6 as disclosed in the present ABA. Such fact is not disputed by theprosecution, but Mr. Phule would contend that the parameters of the regularbail and anticipatory bail are different. However, it is to be borne in mindthat an Anticipatory Bail Application ought to be decided on its own factsand circumstances applying the settled parameters and principles of law inthis regard.9.Mr. Phule, as noted above, has been at pains to state that this isa peculiar case where there are at least four serious criminal antecedentsagainst this Applicant, more particularly for offences under similarprovisions as in the present proceedings. In the given factual matrix it is alsonot disputed by the prosecution that the informant also has a criminalhistory of offences inter alia under Sections 307 of the BNS. There cannot bea quarrel with the submission of Mr. Phule that two wrongs cannot make aright. However, the judgments relied on by Mr. Ostwal in regard to theaspect of criminal antecedents in such proceedings would indicate that theseby themselves cannot be the sole basis for refusal of bail as also observed bythe Supreme Court in Prabhakar Tewari Vs. State of Uttar Pradesh & Anr.1.The Supreme Court has also held in Maulana Mohammed Amir Rashadi Vs.State of Uttar Pradesh & Anr.2 that it is the duty of the Court to find out therole of the accused in the case in which he has been charged and othercircumstances, such as possibility of fleeing away from the jurisdiction of theCourt etc. and not proceed against the accused merely on the basis of1 (2020) 11 SCC 6482 (2012) 2 SCC 382Shubham Page 6 of 9 907-ABA-1553-2024.doccriminal antecedents. There are other judgments including that of this Courtwhich have been cited by Mr. Ostwal and are duly noted. It appears from therecord that in the present facts and circumstances, the Applicant hasdisclosed all the antecedents known to him in the application as per themandate of the Supreme Court in Munnesh Vs. State of Uttar Pradesh3. Thedecisions (supra) on the aspect of criminal antecedents make it clear thatthere is no straight jacket formula,d that solely relying on criminalantecedents Anticipatory Bail Application ought to be rejected only on suchground, overlooking the vital requirement of prima facie case coupled withthe necessity of custodial interrogation. 10.In the given facts and circumstances, the Court finds that thereis no breach by the Applicant of the conditions in the order dated 19September 2024 of this Court granting protection to the Applicant. Theprosecution would not dispute such position, thereby indicating that theApplicant has joined the investigation. In the given proceedings, the Court isconcerned with the detention of the Applicant at the investigation stage andnot testing the legality of the case instituted against him as observed by theSupreme Court in Bijender Vs. State of Haryana4 which also arose from ananticipatory bail proceeding.11.The Court, at this stage, is unable to accept Mr. Phule’ssubmission that here is an Applicant being an history-sheeter who deservesto be taught a lesson which would warrant his custodial interrogation. Thisis more particularly when the present Applicant has shown his willingness tojoin the investigation and has undertaken to continue to co-operate with theongoing investigation. Therefore, I am afraid that such submission ofprosecution cannot form the basis of custodial interrogation of theApplicant, when the sina-qua-non of prima facie case is made out by theApplicant. For such reasons, custodial interrogation of the Applicant, in my3Order dated 3 April 2025 passed in SLP (Cri.) (S) No.1400 of 20254Order dated 6 March 2024 passed in SLP (Cri.) (S) No.1079 of 2024Shubham Page 7 of 9 907-ABA-1553-2024.docprima facie opinion, is not required in the given factual complexion.12.Accordingly, the interim order of this Court dated 19 September2024 is confirmed. The Anticipatory Bail Application deserves to be allowedby passing the following order, which in my view, would meet the ends ofjustice:-ORDER(i)In the event of arrest of the Applicant in connection with CRNo.0314 of 2024 registered with Tophkhana Police Station,Dist. Ahmednagar for the offences punishable under Sections326, 307, 143, 144, 147, 148, 149, 427, 504 and 506 of theIPC and Section 4/24 of the Arms Act the Applicant isdirected to be released on bail on his furnishing PR bond inthe sum of Rs.20,000 (Rupees Twenty Thousand Only) withone solvent surety in the like amount.(ii)The Applicant shall cooperate with the investigation and shallattend the concerned police station on every Monday at 11.30a.m.(iii)The Applicant shall furnish details of residential address andother contact details such as mobile number etc. to theconcerned police station. If there is any change in the contactdetails, the same shall be immediately informed to theconcerned police station.(iv)The Applicant shall not leave the jurisdiction of the Courtwithout prior permission/order of the Court, until furtherorders.(v)The Applicant shall not influence the witness/es and/ortamper evidence in any manner whatsoever.Shubham Page 8 of 9 907-ABA-1553-2024.doc13.Needless it is to observe that the above observations are primafacie, in the context of adjudication of this Anticipatory Bail Application.14.The Anticipatory Bail Application is allowed in the above terms.[ADVAIT M. SETHNA, J.]Shubham Page 9 of 9